WebTracker
Additional Terms and Conditions
These WebTracker Additional Terms of Service (“WT Additional Terms”), as well as the General Terms and Conditions of Service (“Terms”), apply to the Services, as that term is defined below, that Higher Images provides to its clients (“you”).
Any capitalized terms not defined in these WT Additional Terms have the meanings given to them in the Terms of Service. In the event of a conflict between these WT Additional Terms and the Terms, the provisions of the Terms control.
1. WebTracker Services. Higher Images provides access to improve the reception of your advertising by identifying prospects, delivering advertising targeted using a variety of methods, and other methods (the “Services”).
2. Changes to the Services. Higher Images reserves the right to make changes to the Services without notice or compensation to you and for any reason to cease the display of any ad promoting your products and/or services, including, but not limited to, banner ads, text ads, pre-roll video ads, contextual ads, email, lead generation pages or social media (collectively, “Online Advertisements”). Any campaigns that include “enhanced products” and/or “e-Blast” products may include up to 100% PPC. Higher Images uses best efforts not to display Online Advertisements on websites that are of pornographic, defamatory, obscene or illegal nature, and in the event you notify Higher Images in writing that the Online Advertisements are being displayed on such website, Higher Images will promptly remove the Online Advertisements.
3. Setting up the Service. Setting up a WebTracker account with Higher Images is free of charge. Higher Images has no required minimum spend for the use of the WebTracker technology, though more advanced products may come with additional costs and minimums. You may be provided with a password protected account to exercise your rights.
You are responsible for all activity occurring under your account. You shall:
(a) notify Higher Images immediately of any unauthorized use of any password or account or any other known or suspected breach of security; and
(b) report to Higher Images immediately and use reasonable efforts to stop immediately any copying or distribution of the WebTracker technology (or any portion thereof) or of any data or content contained in WebTracker platform through your account that is known or suspected by you.
You assume any and all liability relating to the setup, management, and activity of any campaigns within WebTracker, whether intentional or unintentional, and hold Higher Images and its licensors harmless.
4. Technical Requirements. You acknowledge and accept the technical requirements and the specificity of the service. You commit to implement (and continually comply with) the technical requirements for use of WebTracker. In case of delay in these operations due to the Client, Higher Images does not warrant the start date. Client shall not modify or attempt to modify the codes or any other program of theWebTracker technology.
5. Ownership. You acknowledge that you are obtaining only a limited right to access and use WebTracker, and that Higher Images or its suppliers or licensors retain all right, title and interest (including all patent, copyright, trade secret and other intellectual property rights) in and to the WebTracker technology, including the right to continually evolve that technology (or any portion thereof). Higher Images may freely use any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the WebTracker technology (or any portion thereof).
6. Account Management. WebTracker provides you with a great deal of transparency and control into making adjustments to your account and campaigns. Any modifications you direct Higher Images to make in setting up, budget adjustment, launching, pausing or stopping a campaign are your sole responsibility. Any charges or costs that are a result of changes made by you will be included in your regular WebTracker bill and/or invoice.
7. Intellectual Property. Neither party shall acquire any intellectual property right as a result of the Online Advertisements and each party remains sole owner of the intellectual property rights it owned prior to the conclusion of the Agreement. Higher Images is sole owner of the data collected from the Online Advertisements as a result of its WebTracker technology. You acknowledge that Higher Images has the right to use and disclose data derived from your use of the WebTracker technology:
(i) as part of its business operations, as long as the use/disclosure of the aggregated data do not individually identify you and/or users,
(ii) to operate, manage, test, maintain and enhance the WebTracker service, WebTracker technology and other Higher Images products, programs and/or services, and
(iii) if required by court order or law.
For the whole duration of the Agreement, you grants Higher Images a worldwide, royalty-free, transferable license to use, reproduce and represent your trademarks and logos, to display, reproduce, represent the your content and any other creative elements of an Online Advertisement
(i) on all supports of the WebTracker Network
(ii) on all documentation promoting the WebTracker service. Higher Images shall seek prior authorization from you for any press release.
The Higher Images name, Higher Images logo, and the product names associated with the WebTracker technology (or any portion thereof) are the trademarks of Higher Images or third parties, and no right or license is granted to use them.
8. Limitations on Use of WebTracker. You shall not:
(a) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the WebTracker platform, services, API, and/or the data contained therein, including without limitation, underlying technology, trade secrets, content or information (collectively, “Our Technology”) (or any portion thereof) in any way;
(b) modify, reproduce, adapt, translate Our Technology (or any portion thereof) or make derivative works based upon Our Technology (or any portion thereof);
(c) reverse engineer, disassemble, decompile or otherwise attempt to derive source code from Our Technology (or any portion thereof);
(d) violate any applicable local, state, national and foreign laws, treaties and regulations, including those related to advertising, data privacy, international communications and the transmission of technical or personal data, and all compulsory industry self-regulations, including but not limited to the EU General Data Protection Regulation (“GDPR”), and the California Consumer Privacy Act and its regulations (“CCPA”), each of the foregoing as they may be amended from time to time in connection with your access and use of Our Technology (or any portion thereof) nor use Our Technology for any purpose or in any manner that is unlawful or prohibited by these WT Additional Terms;
(e) interfere with or disrupt the integrity or performance of the Our Technology (or any portion thereof), including, but not limited to, the WebTracker services or platform, the API, or the data contained therein;
(f) access the WebTracker services, platform, or APIs by any means other than through the interface that is provided by Higher Images for use in accessing the WebTracker services, platform, APIs, or special reports generated for you;
(g) attempt to gain unauthorized access to Our Technology (or any portion thereof) or its related systems or networks or misrepresent its identity, use or attempt to use any unauthorized identification (including without limitation use of any third party logo, name or other identifier);
(h) use Our Technology (or any portion thereof) for any purpose or in any manner that is unlawful or prohibited by these WT Additional Terms;
(i) publicly disseminate information or analysis regarding the performance of the Our Technology, including without limitation, the the WebTracker services, platform, or APIs; or
(j) permit or authorize any party to do any of the foregoing.
9. Display of the Online Advertisements. You acknowledge and accept that Higher Images has absolute discretion as to where, and frequency the Online Advertisements will be displayed within the WebTracker network.
10. Rejection of Ads. Higher Images reserves the right for any reason to reject your ads.
11. Results. WebTracker may measure the number of impressions and/or clicks and/or user interactions and/or other indicators necessary for calculating your charges. All campaigns that have a contracted “click through ratio guarantee” will be measured solely upon WebTracker’s measurements, which are backed by reporting provided to you, calculated based upon reports provided to you.
12. Fees and Charges. All charges and invoices will be based on Higher Images’s measurements and tracking and not based upon those of you or any other party. For accounts that have been setup using a credit card, Higher Images pre-charges you on a monthly basis for the monthly budget costs (determined or set by the executed insertion order). Prior to the start of a new month, Higher Images will charge your credit card for the amount necessary in order to begin the month with a balance equal to the desired monthly campaign spend.
All campaigns that require pre-payment must be paid in-full prior to campaign launch. All pre-paid campaigns are non-refundable. Pre-paid monthly campaigns setup on a recurring payment schedule must be canceled within three (3) business days of scheduled renewal of automated draft. All multi-month, pre-paid campaigns that are setup on a monthly automated payment schedule will automatically renew for the same term length of original insertion order if not canceled within three (3) business days of scheduled completion of original multi-month campaign.
Any dispute with regard to an invoice can only be raised within one month of receipt.
13. Personal Data. You acknowledge and accept to insert the WebTracker code and tags on your webpages. Any data received by Higher Images via the tags inserted on your webpages will be used for performing the service and for no other purpose. Higher Images will collect and use these data in accordance with all applicable laws and regulations, including, but not limited to, the GDPR and CCPA and other laws governing privacy and data protection. You shall undertake to include on your website(s), a privacy policy that discloses that third parties may place anonymous cookies on the browsers of visitors to its website(s) and may send their own cookies to the visitors’ cookie file. These cookies will allow the Higher Images technology to serve Online Advertisements. Each Online Advertisement will include a link that will include information for users on how to opt-out of being cookie retargeted.
14. Privacy. You agree that Higher Images is acting as a Service Provider in relation to the services it provides to you pursuant to these WT Additional Terms. To the extent that Higher Images processes Personal Information, Higher Images warrants and represents that it shall not Process, retain, use, sell, or disclose Personal Information for any purpose other than for the specific purpose of performing the services specified in these WT Additional Terms, or other Agreement between you and Higher Images, or as otherwise permitted by the CCPA. All capitalized terms in this section shall have the same meanings as defined in the CCPA.
15. Warranties. Higher Images gives no warranty or condition, express or implied, with respect to any matter and, in particular, but without limitation, expressly disclaims any warranties or conditions of non-infringement or the quality or fitness for any particular purpose of the WebTracker Technology, the WebTracker Network or any service provided under this Agreement.
You warrant and represent to Higher Images that:
(i) you have the right, power and authority to enter into this agreement and perform its obligations as set out herein;
(ii) you have the right to provide the content of the Online Advertisement to Higher Images for publication, without infringing any rights of any third party including, without limitation, intellectual property rights;
(iii) your content complies with the Interactive Advertising Bureau Guidelines Standards & Best Practices and all other applicable law, guidelines and industry codes of practice and any other regulations or statutes which may apply;
(iv) your content complies at all times with all applicable laws, statutes, statutory instruments, contracts, or regulations, advertising and marketing codes of practice in any of the jurisdictions where the banner is displayed, including, but not limited to, the GDPR and CCPA and other laws governing privacy and data protection;
(v) your content does not give access via hyperlinks to any website containing material that is obscene, defamatory or contrary to any applicable law or regulation.
You shall defend, indemnify, and hold Higher Images harmless from and against any suit, proceeding, assertions, damage (direct or indirect), cost, liability, and expenses (including court costs and legal fees), incurred as a result of any breach of this clause or of any claim which if true would be a breach of clause.
16. Further Indemnification. In addition to the indemnification above, you shall defend, indemnify and hold harmless Higher Images, its licensors, subsidiaries, affiliates, officers, directors, employees, agents from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) (“Claims”):
(i) arising out of or in connection with any Claim arising from Your breach of these WT Additional Terms or applicable laws, including, but not limited to, the GDPR and CCPA and other laws governing privacy and data protection;
(ii) arising out of or in connection with your breach of your license set forth in these WT Additional Terms; and
(iii) arising out of or in connection with any ads submitted under your account, the landing pages for such ads and the products, goods and services promoted in your ad, including without limitation any claims that any of the foregoing (a) infringes the intellectual property rights of a third party, (b) contains harmful code, or (c) violates applicable laws, including, but not limited to, the GDPR and CCPA and other laws governing privacy and data protection.
17. Limitation of Liability. In no event shall Higher Images be liable hereunder for any loss of use, lost or inaccurate data, failure of security mechanisms, interruption of business, costs of delay or for any special, indirect, incidental or consequential damages or for lost profits regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise, even if informed of the possibility of such damages in advance. Higher Images’s maximum liability under these WT Additional Terms shall be limited to (a) in the case of an online order, $100, and (b) in the case of no order nor executed agreement, $0.
18. Suspension and Termination. Higher Images may, for any reason, (i) terminate or suspend your access (or the access of specific personnel) to WebTracker; and (ii) terminate these WT Additional Terms and/or your account.
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